Attorney and Bernstein Fellow Tara Melish from
the Center for
Justice and International Law (CEJIL) outlined several
legal strategies the human rights organization uses to assist
those who wish to being complaints concerning economic, social,
and cultural rights (ESCR) violations in the Inter-American
Commission and the Inter-American Court of Human Rights.
Part exposition on the Inter-American legal system and part
lesson on human rights legal strategies, the Sept. 29 session
was sponsored by the Human Rights Program, Voz Latina, the
J.B. Moore Society of International Law, and the Human Rights
Study Project.

Melish, a former Fulbright Scholar who
worked in Guatemala on food security strategies, said ESCR
issues are a revolutionary
area of the law because of the dramatic potential for changing
Central America, South America, and the Caribbean.

Melish outlined the legal structure of
the Organization of American States (OAS), an international
body established
in 1948. Under the OAS, the Inter-American Commission, established
in 1959, has jurisdiction to hear contentious cases brought
by individuals or NGOs on behalf of individuals when state
legal avenues have been exhausted. The Commission sometimes
refers cases to the Inter-American Court of Human Rights,
a panel of seven OAS-appointed judges that began hearing
cases in 1987. The guiding instruments for trying human rights
cases in the OAS legal system include the OAS Charter, which
makes reference to standards or goals in regards to human
rights; the American Declaration (1948), which establishes
human rights and ESCR but was adopted as a non-binding treaty;
and the American Convention on Human Rights (1978), which
Melish highlighted as one of the primary tools CEJIL lawyers
use. The Convention has three chapters; Chapter 2 contains
articles outlining civil and political rights, while Chapter
3 has Article 26, the only provision in the Convention that
deals with economic, social, and cultural rights.

Melish said the article was so vague, “it’s
not hard to understand why this provision hasn’t been
enforced over the last 15 years.” Enforcement of the
rights outlined by the Convention has been difficult. The
Inter-American Court of Human Rights only has jurisdiction
over claims of violations of the American Convention—and
only for the 25 (out of 35) OAS states who have ratified
the Convention. To better establish ESCR claims, the state
parties to the American Convention established the Protocol
of San Salvador in 1999, but the only rights protected under
the individual petition process include the right to strike
and the right to education. The Commission has jurisdiction
over all claims of violations of the American Declaration—for
those who have not ratified the Convention (and are not subject
to the Court).

“After they’ve ratified, they can no longer
be held accountable for a whole subset of human rights” covered
by the Declaration, Melish explained. Logically, “those
rights must be protected somewhere in the American Convention,” she
said, which led to what she called “the Article 26
approach.”

AMERICAN CONVENTION

Chapter 3: Economic, Social and Cultural
Rights

Article 26. Progressive Development

The States Parties undertake to adopt measures,
both internally and through international cooperation,
especially those of an economic and technical
nature, with a view to achieving progressively,
by legislation or other appropriate means, the
full realization of the rights implicit in the
economic, social, educational, scientific, and
cultural standards set forth in the Charter of
the Organization of American States as amended
by the Protocol of Buenos Aires.

The Article 26 approach is based
on the idea that rights to education, health, and social
security are included under
that provision. “The argument has never been made to
the Court,” she said, but it has been made to the Commission.
In a recent case before the Commission, the Peruvian government
slashed the pensions of workers to one-seventh of what they
had previously been paid. CEJIL charged that the government
had violated a right to property and a right to judicial
protection, to which the Commission agreed, but the body
passed over CEJIL’s claim of a “right to social
security” under Article 26.

A student in the audience questioned
Melish over whether judicial mechanisms were the best way
to, for example, achieve
good health. Melish responded that according to Chapter 1
of the Convention, the state has to respect life—by
writing laws that criminalize homicide, for example. “All
of the recognized rights in the Convention include Article
26,” she said. “If government actors take direct
steps to harm somebody’s health, then that’s
going to be a violation of the right to health.”

She told the story of an indigenous
woman of Chiapas, Mexico, who had gone to the hospital
to give birth. With no evidence
to support them, doctors claimed the child was retarded and
required a Caesarean. She couldn’t speak Spanish, and
her husband, who could, was forced to leave. “While
they had her open . . . they tied her tubes—without
her knowledge or consent,” Melish said. The government
had forced sterilization of indigenous women in Chiapas because
it would be “less mouths to feed and less poverty.” Not
only was it a violation of the right to health, Melish said,
but a violation of the right to privacy and integrity.

Human rights defenders who work in
the Inter-American system also wield other legal weapons
that are less controversial—what
Melish called the indirect approach and the integration approach.
Both approaches are strategic, because the Commission and
the Court often won’t address what is meant by Article
26.

The integration approach is based on the
idea that all human rights related to ESCR are also related
to civil and
political
rights,
which are defined in chapters 1 and 2 of the Convention.
If a prisoner is denied food and he dies, it’s a violation
of the right to life (Chapter 1) as well as a violation of
the right to health. A current case alleges that the government
should provide medication for HIV-infected citizens—if
the government doesn’t provide the medication, it could
be a violation of the right to life, she alleged. When the
government gives oil-drilling concessions on indigenous lands
in Mexico without consulting the community or hasn’t
properly demarcated the lands to clarify whether the land
is state property, it’s a violation of the right to
property.

Melish called the indirect approach
the “easiest” because
it is based on violations of procedural norms that protect
the legal process, such as the right to due process or the
right to judicial protection, defined in Chapter 2 of the
Convention. “At the very least the government can’t
discriminate on who they’re going to provide education
to,” she said. For example, the Dominican Republic
had denied children of Haitian descent birth certificates,
thus they couldn’t be admitted to schools. Under the
right to judicial protection, if a state guarantees a right
to education in its constitution and doesn’t do so
for all citizens, it can be argued before the Court using
the judicial protection article.

An audience member questioned Melish over how the OAS enforces
its decisions.

“I don’t think that enforcement
should ever temper decisions, but it should temper our idea
of what state
obligations are,” she replied. In the case of the Peruvian
pensions, Melish admitted that the pensions probably should
have been smaller, but there was no dispute the government
broke the law. Peru could have passed a law in advance of
the reduction, arguing it was in the public interest to lower
pensions, but didn’t. Harder questions involve “where
an individual is asking for a particular entitlement,” she
said. While provisions in the Convention such as the right
to property
might suggest that citizens have a right to minimally adequate
housing, “we can’t say the government has to
provide everybody with a house,” she said, adding that
we have to define what state obligations are, and take into
account the resources of a given country.

“The government has an obligation to create some sort
of plan for action” she said. “And then they
need to implement that plan and not divert from that plan.”

The kinds of cases CEJIL tries before
the Commission or Court must be heard through the state’s
legal system first. “We want to make sure states
are protecting rights at the local level,” she said.
But if there’s
a lengthy delay or a lack of due process in the country,
the Commission can get involved sooner. In Latin countries,
nations must
decide cases involving fundamental rights within 72 hours.
The Commission can be petitioned within six months of the
internal resolution, but the petition cannot be submitted
to other international bodies. The state has the opportunity
to respond to petitions, and the Commission investigates
the claim. The Commission “will always try to find
some kind of a friendly settlement,” she said. In a
case decided against the state, the Commission issues an
Article 50 report, usually ordering the state to investigate
the matter and recommending sanctions and reparations (often
in the form of public works).

“What we have found is the state always complies with
compensation,” she said—but doesn’t investigate
or sanction government officials involved.• Reported by M. Wood